When I say 'be cognizant of evidence' I mean evidence that can work for you against your spouse and evidence that can be used by your spouse against you. If you are doing something illegal, stop doing it. If you have a problem, take the necessary steps to correct it and document the steps you've taken to show you've bettered yourself. If your spouse has a problem with drugs or alcohol, make sure you are able to prove it in court.
Whether you are anticipating a possible equitable distribution, post-separation support, or alimony action once your separation has commenced, you will need to make sure you have your financial information readily available. Reason being is that this information is going to be required to be produced by a North Carolina court. Even if you intend to resolve all issues through a separation agreement, any competent attorney that is representing you and/or your spouse is going to require that both parties exchange financial information.
Family law intersects with myriad areas of law with real estate being no exception. When a separation starts, real property inevitably becomes the subject of heated debates between separating spouses. Say you enter into a separation agreement and work out what to do with the marital home. That's great, but what should you do to ensure you are able to move on with your life and obtain a new home without waiting for the year long separation period to be over?
Optimistic that you and your spouse can work your separation out prior to filing a court action? Fantastic, I love the optimism. Here's what you need to know to avoid the drawn out and dreaded legal process.
If you and your spouse have come to the difficult realization that your marriage is no longer working and there are certain factors that lead you both to the conclusion that a separation is the only rational conclusion to your relationship, then a separation agreement may be the best, most cost-effective resolution to your marriage. Separation agreements are authorized by North Carolina General Statute 52-10 as well as common law.
WHAT IS A SEPARATION AGREEMENT EXACTLY?
A separation agreement is a contract between two spouses that can include as many topics as you and your spouse can agree upon. Most of those topics I've already covered in my family law blog that can be found here and they include child custody, child support, and equitable distribution. Spouses can also include post-separation support and alimony in a separation agreement as well.
WHAT RECOURSE DO I HAVE IF MY SPOUSE BREACHES THE SEPARATION AGREEMENT?
A breach of a separation agreement is the same as breaching any contract made between two parties. The remedy is the same as if party A and party B enter into a contract for services and party B breaches. Party A can file a breach of contract action against party B to recover damages. Same with a separation agreement. If a separation agreement states that spouse A is to pay spouse B $1,000 a month in alimony and spouse A misses a payment or payments, then spouse B can file a breach of contract suit against spouse A for breaching their separation agreement. Keep in mind that the statute of limitations for any breach of contract action is three years from the date of the breach or ten years from the date of the breach if the agreement was signed under seal by both parties.
CAN A JUDGE ENFORCE THE AGREEMENT WITHOUT A PARTY FILING A BREACH OF CONTRACT CLAIM?
Yes, however, the agreement must be incorporated into a court order for a judge to be able to enforce the agreement through contempt. If the parties do not have a specific provision in their separation agreement that states that they both intend to have the separation agreement incorporated into a final divorce order, then most judges will not agree to incorporate it into the final divorce order.
WHAT IF MY SPOUSE WON'T SIGN THE AGREEMENT?
Both parties must voluntarily sign and have their signatures notarized for a separation agreement to be valid. However, there will not be a valid contract if a party signs under duress or is unduly influenced. I highly recommend that parties sit down and come up with an idea of what they will agreed upon in a separation agreement and figure out what areas they may need help with. If both parties are far off in what they want in the separation agreement, then a separation agreement may not be in the cards. However, if both parties have everything worked out except one area (ex. Post-Separation Support), then a separation agreement will still be a an option.
DO I NEED MY SEPARATION "PAPERS" IN ORDER TO BE LEGALLY SEPARATED?
This is a very common question and certainly understandable given what is seen in popular culture, but the answer is no, spouses do not have to actually have anything in writing to be legally separated. That said, I highly recommend having a separation agreement in place so there is proof of when the separation started as well as written proof as to what the parties agreed upon in regards to marital property, custody schedules, etcetera. A spouse starts the separation process when he or she moves from the marital home and intends to be separate and apart from the other spouse and actually does so. I'll go deeper into the elements of an actual divorce action in North Carolina in my next blog post.
In the meantime, check out my child support video posted here. Until we meet again.
Today, as promised on my last blog post and video, I will be discussing Child Support. Child support is governed by North Carolina General Statute § 50-13.4 and is available as a legal remedy to any person, parent, institution or organization that either has custody of a child or is bringing a custody action or proceeding for the custody of such child.
In my opinion, North Carolina has done a great job in taking a lot of the dispute out of child support matters because they use child support guideline worksheets that determine which party has a child support obligation to the other. The guideline worksheets, found here, use an algorithm in determining which parent pays how much in support for the minor child or children.
The reason why I stated in my custody blog post and video that custody and support are intertwined is because the number of overnights that a parent has with a child will determine what worksheet is used.
Worksheet A is used if one parent has primary physical custody of all of the children for whom support is being determined. Primary physical custody is determined if one parent has custody of a child for 243 nights or more. If you have two children and custody of one or more of the children is shared. If that ends up being the case then you would use Worksheet B.
Speaking of Worksheet B, it will be the proper worksheet for calculating child support obligations if a child lives with both parents for at least 123 nights or more during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent.
There is one other Child Support Worksheet in North Carolina and it is, you guessed it, Worksheet C. Worksheet C is typically not used very often only because it is for situations where parents have multiple children and one parent has primary custody of one child for whom support is sought while the other parent has primary custody of another child or children for whom support is sought. This is called Split Custody.
So, what else goes into determining how much support a party is obliged to pay for a child or children? Good question, the guidelines also use number of children, gross monthly income of both parties, pre-existing child support payment, number of other children (for whom a party already pays child support), work related child care costs, health insurance premium costs, & extraordinary expenses (typically necessary education expenses and travel to the other parent's home to pick up the child, but a party can try to argue other expenses related to the child).
WHO CLAIMS THE CHILD(REN) AS DEPENDENT ON TAXES?
The schedule (worksheet) assumes that the parent who receives child support claims the tax exemptions for the child.
STARTING A CHILD SUPPORT ACTION
To get a child support action started you can go two routes. One way would be to file with the Child Support Enforcement (CSE) office in the county in which your child has resided for the last six months or more. You can find your (CSE) office by clicking here. This is the public branch of child support cases and they can sometimes be very busy.
The second way to start a child support action is by filing a child support complaint, summons, domestic civil action cover sheet, etc. with the family court in the county in which your child has resided for the last six months or more. You will have a filing fee of $150; however, your case will more than likely move more quickly than option one above.
WHAT HAPPENS IF CUSTODY CHANGES?
If custody changes to where you go from shared custody to primary custody and therefore go from Worksheet B to Worksheet A you can file a motion to modify child support under NCGS §50-13.7. You just have to show a substantial change in circumstances which includes, but is not limited to, change in custody overnights (worksheet change) and increase or decrease in gross monthly income by a parent or parents.
If a party to a child support action does not have income, resigns from a job for no reason other than to decrease their income for CS purposes, is terminated from their employment (due to party's behavior), or otherwise works less hours to decrease income, then the opposing party can ask the court to impute income to the party with no or lowered income. There must be a showing of bad faith by the party who's income is decreased for the court to impute income.
Imputing income basically means that the court will assign an amount of income to one party. If a party has no income, the court may decide that their gross monthly income will be minimum wage at 40 hours a week. Say the court determines that a party has intentionally decreased their hours worked or otherwise decreased their income for purposes of attempting to pay less child support (bad faith), then the amount the party was earning prior to the decrease in gross monthly income will still be attributed to them on the guidelines worksheet. That is the party's potential earning income.
I hope these basics of North Carolina Child Support laws have been helpful. I will be back again next week with a discussion on obtaining an actual divorce.
If you are going through a separation or divorce with children you may have difficult questions regarding custody. My hope is that this blog post will help alleviate concerns and answer though difficult questions. #morethanlaw #FamilyLaw #ChildCustody #Separation #Divorce